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NPR, seeking to use audio from Capital Gazette shooting trial, sues to overturn Maryland’s judicial broadcast ban

National Public Radio is suing two Maryland judges in a challenge to the state’s broadcast ban on court proceedings, seeking to build on momentum from a recent appellate court ruling.

The lawsuit, filed in U.S. District Court, is focused on recordings of the trial of the Capital Gazette shooter, but more broadly challenges the state’s ban on broadcasting court proceedings. It claims the ban violations the First and Fourteenth amendments of the constitution.

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“The Broadcast Ban . . . creates a chilling effect on journalism that violates the First Amendment,” lawyers for NPR wrote in the complaint.

The Maryland Code forbids anyone, including the press, from broadcasting official court recordings of state criminal court proceedings that were lawfully obtained from the court itself.

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In June, the 4th U.S. Circuit Court of Appeals indicated in a unanimous ruling that the ban is constitutionally suspect, and sent the issue back to a lower court for more hearings. They cited U.S. Supreme Court rulings in finding that “broadcasting of those lawfully obtained recordings cannot constitutionally be punished ‘absent a need to further a state interest of the highest order.’”

That appeals court challenge was brought on behalf of journalists Brandon Soderberg and Baynard Woods, who were putting together a documentary on the Baltimore Police Department’s Gun Trace Task Force corruption scandal and sought recordings of testimony those officers gave in state court; Open Justice Baltimore and Baltimore Action Legal Team, and Quiana Johnson, a Prince George’s County activist who founded a group called Life After Release.

Tribune Publishing Co., the parent company of The Baltimore Sun and the Capital Gazette, joined 23 news organizations in an amicus brief supporting the position.

NPR was also one of the organizations that signed on to the amicus brief, but now is bringing its own challenge, suing Anne Arundel Circuit Judge Glenn Klavans and administrative Circuit Judge Fred S. Hecker.

Gerald Fischman, Rob Hiaasen, John McNamara, Rebecca Smith and Wendi Winters were gunned down in the Capital Gazette newsroom in 2018 by Jarrod Ramos, who pleaded guilty but not criminally responsible last year. In July, after a two-week trial, he was found to have been responsible. He is set to be sentenced Sept. 28 and is facing five life sentences without the possibility of parole.

NPR says it plans to air an episode of the “Embedded” podcast, focused on the trial, on Sept. 30, and wants to air recordings that it obtained from the court. Late last month, it sought assurances from the Maryland attorney general’s office that contempt charges would not be brought if it aired the recordings, and was told no such assurances could be made.

“NPR therefore finds itself in the untenable position of either using the recordings in its coverage while facing the risk of being held in contempt of court, or refraining from using the recordings solely out of fear that it, or one of its journalists, may be held in contempt of court,” their attorneys wrote.

“There is no conceivable ‘state interest of the highest order’ that could justify Maryland’s ban on broadcasting lawfully-obtained recordings of trial court criminal proceedings,” they continued. “The Broadcast Ban cannot withstand strict scrutiny because this provision is not necessary to serve a compelling governmental interest, is not narrowly tailored to achieve that interest, and is far from the least restrictive means of achieving any state interest whatsoever.”

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